Sussex ruling is a warning shot for the OfS – not the end of the free speech debate

FE colleges with higher education (HE) provision and regulators more generally will have noted with interest the recent High Court decision in The University of Sussex v The Office for Students (OfS).

Not only did the High Court find that the OfS had failed to apply the law correctly in its approach to freedom of speech, it also found bias, concluding that the OfS had approached its investigation with a “closed mind”.

Despite this severe criticism, which is particularly significant for a regulator whose remit depends on correct interpretation of the law and procedural fairness, the OfS has confirmed that it will not appeal, saying in a statement that it wants to “focus on the future” and “learn lessons from the judgment”. However, HE providers should not be under any illusion that freedom of speech and academic freedom has moved down the OfS’s regulatory radar.

The same statement makes clear that the OfS anticipates having a “range of sharper tools” to help it “effectively intervene where freedom of speech or academic freedom is compromised” including the complaints scheme due to launch this September. This will be open to staff, members and visiting speakers of HE providers to raise complaints directly with the OfS about freedom of speech or academic freedom breaches, but not to students.

The OfS adds that “it is important to note that the judgment broadly endorsed the approach set out in our free speech guidance”. The guidance referred to here – Regulatory advice 24: Guidance related to freedom of speech – was published last year, after the OfS’s decision to fine the university £585,000 for freedom of speech related breaches.

The High Court decision highlighted that the guidance has a proportionality test to be applied by organisations when taking decisions in this often grey area. However, the OfS did not apply this test in its own investigation, taking instead what the court considered to be a legally incorrect approach – effectively treating lawful speech as determinative, rather than properly applying a structured proportionality assessment.

The judgment, and the OfS’s response to it, provide some reassurance that a more nuanced approach is correct. That said, such decisions remain highly complex and at risk of challenge.

Governing documents and policies require careful drafting to ensure the right balance is struck and, as the judge noted, even the OfS’s own guidance does not make this an easy task: “The very complexity of the OfS’s own regulatory documents and of the three-step approach relied upon by the OfS illustrates the difficulty of drawing up a simple document, which will meet the various competing legal and good governance requirements.”

The OfS has made clear that it expects HE providers to review their policies and processes, highlighting issues such as the handling of protests and staff recruitment. That review should not be limited to headline freedom of speech codes but should also entail looking at governing documents, equality, inclusion and complaints policies and procedures as well as those for staff and visiting speakers. The importance of consistency between policies and a clear governance framework when it comes to sign off and hierarchy of policies has been underlined by this case.

There are interesting parallels to draw between this decision and recent UK case law involving other regulators. One view is that this case can be read as part of a broader pattern in which courts appear willing to apply closer scrutiny to regulatory reasoning, evidential foundations and procedural fairness in certain contexts (for example in financial services and competition law). In some instances, this has resulted in decisions being quashed or remitted, increasing litigation risk and cost for regulators. The University of Sussex judgment is consistent with that direction of travel, particularly in its rejection of inadequate or overly loose reasoning and emphasis on the critical importance of a clear statutory footing and disciplined analysis.

Concerns may arise where regulators are perceived to be pursuing exemplar or signalling cases – echoing criticism that the OfS appeared to target the University of Sussex to set an example.

There is arguably potential for a more cautious, legally defensive regulatory posture across sectors. It remains to be seen how this will translate once the OfS begins to operate its self-described “sharper” range of intervention tools.